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Who Stole the Goose?

10/31/03

Excerpted and adapted from James Boyle’s
keynote, "The Virtue of Disorder: Sloppiness, Serendipity, and Openness
in Educational Materials," given at the Syllabus2003 conference in
San Jose, Calif., July 29, 2003.

The law locks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from off the goose.

The law demands that we alone
When we take things we do not own
But leaves the lords and ladies fine
Who take things that are yours and mine.

The poor and wretched don’t escape
If they conspire the law to break;
This must be so but they endure
Those who conspire to make the law.

The law locks up the man or woman
Who steals the goose from off the common
And geese will still a common lack
Till they go and steal it back.
—Anonymous

In his keynote at Syllabus2003, Duke law professor James Boyle described
two radically different perspectives on copyright: the "closed" view, in which extensive legal protections purport to offer economic incentives
to authorship; and the "open" view, which fosters creativity through
less restrictions and greater flexibility in the laws that control access to
intellectual property. Boyle points to the need for faculty, students, researchers,
and others to be able to access and build on the ideas of others—especially
when the original authors would wish it so.

Let me give you a little primer on copyright law. Every time you fix some
piece of expression, in tangible form, you get a copyright on it. The notes
you’re taking are copyrighted, the doodle on the cocktail napkin is copyrighted,
the snapshot of your dog just moving out of the frame is copyrighted. All of
those things are copyrighted whether you want them to be or not, regardless
of whether you make the little "C" with the circle around it, or
write "all rights reserved," or anything else. It’s all copyrighted
the moment it’s fixed.

This is a change to the law; the law was changed in the late 1970s and fully
came effective in the late 1980s. It used to be that you only got a copyright
if you asked for one by saying, "copyright." You actually had to
say, "I assert a copyright over it." You actually had to write the
little "C." That seems to me like not such an incredible imposition—to
actually say that if were going to give you a legal monopoly backed by the force
of the state and the FBI and maybe 120-150 years of protection, you at least
have to ask for it or at least have to say that you want it. That d'esn’t
seem to me like such an incredible burden on you. You didn’t have to file
anything. To be sure to enforce it you would later have to file, but just to
get the right, all you’d have to do is put the little "C."
Nope, we said, that’s just too much. People out there, that’s just
too much to ask them to do because someone might write something and not realize
they had to do that, and the poor folk would then lose their copyright; the
work would pass into the public domain.

In 1976 this would all be fine because, to be sure, there were huge numbers
of people producing things—notes that they had on class; their presentations
that they would actually show in class; their account of what they remembered
of a history course they’d taken; working notes for a manuscript; some
tips on how to teach calculus to 10th graders or what have you-but none of them
really existed in any way where anyone else could get access to them. They were
sitting in your filing cabinets. Maybe you photocopied them and sent them to
a friend, but they weren’t sitting there in any place where anyone might
actually get access to them. So there was, you might imagine, a tiny island
of works which copyright actually was concerned with, which were the ones being
commercially published and thus being made available to others, and then a huge
remainder of works which were copyrighted but they just sat in your file cabinet,
so who cares? Yes, all your cocktail napkin doodles are copyrighted, but who
cares.

But the world has changed since then, and it has changed because of the introduction
of the Internet. The Internet is seen here not as something which produces this
terrible threat of costless copying leading to piracy, but as that which makes
available to me your thoughts on how to teach calculus to 10th graders; that
nifty little graph that you have for showing fractionation in a distillation
process; that beautiful animated GIF illustration of a molecule which is sitting
on your course Web page; the nice song that you made; the photograph you took
of the Civil War Memorial or the battlefield. You know the Internet; you know
what’s out there and you know how much of it is potentially of use to
you.

Now can you use that stuff? You might think nervously, "Wait, I’m
using it all the time; I hope I can use it. I mean, it’s on the Internet,
isn’t it?" To be sure, the fact that people have put material on
the Internet means that it is unlikely, although not impossible, that other
people will then be sued for actually looking at it. This seems kind of obvious,
but sadly the legal system is not always obvious.

But what about reproducing it or changing it? What if you wanted to take that
module on calculus that someone had developed in Hawaii and adapt it for your
students who have a slightly different curricular background? Or what about
that molecule? Maybe you like the GIF animation but you think you can tweak
it to make it even better, or maybe you just want to reproduce it and put it
in some materials... Can you do it? You say, "Well, I need to find the
author and get permission in a legally binding document, so who’s the
author? I don’t know; it’s up on this Web page of 27 different people
and all their e-mail addresses are broken. How do I actually get access to this
stuff?"

The tragic thing about the Internet is that our new system of copyrighting
everything the moment it’s fixed, not requiring anyone to say anything,
means there are vast numbers of people—and educators are the best example—producing
things that they affirmatively want to share, putting them out there, and having
other people say, "I just don’t know if I’m allowed to photocopy
this to my class.
Every time I think twice about that. Every time, I try to
contact you, send you an e-mail, get your permission when you in fact never
wanted to copyright the thing in the first place or at least are perfectly happy
for me to reproduce it.' That is a loss, a social loss, every bit as real
as the loss suffered when someone pirates a song. It’s a loss from failed
sharing, a loss from failed collaboration. It d'esn’t mean we should give
up on fighting the losses from piracy, but it means we should counterbalance
that by [considering] other kinds of losses that are produced when we have a
system so ill-tuned.

I’m involved with an organization called Creative Commons which, if
you look on the Internet under Creative Commons [www.creativecommons.org], or
just Google that, you’ll see what we do. We try to provide a second-best
solution—and by the way this is just an example of how private individuals
can try to ameliorate the situation, particularly for educators, so that those
of you who are actually producing stuff that you do want other people to use
can offer it to the world under the conditions that you want. Maybe you want
to forbid commercial use but allow any non-commercial use. Maybe you want to
say that anyone can use it in any way but your name has to be attached, or maybe
you want to say that anyone can use it but only in its entirety. Or maybe you
want to say you can even make derivative works; you can change it but if you
do change it I want you to change it under a license at least as generous as
the one as I gave you so that other people can build on it in the future. All
of those possibilities exist, and you pretty much go through and pick your license.
We then produce a license which is not only lawyer readable... [It] actually
is explained in terms that human beings understand as well and, more interesting
perhaps, machine readable so that in the future you’ll be able to go into
Google or all the Web and [find] all illustrations on the history of the Eiffel
Tower that are available for non-commercial use with attribution. The point
is that there was a problem here and we attempted to deal with it.

Where d'es all of this leave us? I think we are really actually trembling
on a cusp here... we have, academia in particular, long dominated by the values
of Mertonian open science, free exchange, free speech, access, and so forth.
We have on the other hand increasing pressures to close things up, to wrap things
in tight technological boundaries, and we have vast numbers of new legal initiatives.
What’s more, the largest defense against these new intellectual property
rights up until now was popular ignorance, incomprehension, and ridicule. It
used to be if someone said, "you can’t quote some fragment of what
I’m saying because I copyrighted it and you can’t quote it,"
then people would say, "don’t be ridiculous." I’m actually
worried that that tendency is being weakened as people become more and more
familiar with end user licensing agreements, point-and-click restrictions, and
limited institutional understandings of fair use.

Recently I was writing an article in which I quoted a 300-year-old p'em about
the enclosure of the English commons, the area of arable common land which was
enclosed into private plots by the state, handed over to a single landowner
who it was assumed would then use it more efficiently.
The p'em said, "The
law locks up the man or woman who steals the goose from off the common but leaves
the greater villain loose who steals the common from off the goose." Meaning
that this was a little unfair that this legal intervention changed into a crime
[accessing] that which had been the common property of all of us. I thought,
this sounds like we’re in the middle of a second enclosure movement-and
I wrote an article with that title.

In the process, as a good academic I was trying to track down the p'em, which
was written by that annoying p'et Anon. and which had of course 15 or 16 spurious
and impossible-to-verify provenances given on the Internet in addition to about
5 or 6 different ones in the scholarly literature. I sent an assiduous research
assistant to track it down, and he found a whole lot of people who quoted the
p'em. He sent e-mails to about 15 or 20 people saying, "I notice you quote
this p'em and you say it dates from [and then different stories]. I just wonder,
where did you find that information?" Of the 20 people he wrote to, 12
wrote back immediately saying, "I’m very sorry and I’ll take
it down immediately." One institution, a newspaper, wrote back and said,
"We are horrified at this and the reporter responsible has been disciplined."
He wrote back to them [all] saying no, your source—meaning why did you
think that it came from there. "I’m just interested, I’m not
asserting any rights over it; I just want to know why you said this."
Five of them wrote back saying "Look, we’ve taken it down, please
don’t sue us." The assumption about inquiries in the world of scholarship
is now one in which you are as likely to be asserting actual ownership as you
are to be inquiring about intellectual provenance. That I actually think is
a tragedy; it really is a tragedy. It is a tragedy of a lost commons—not
the tragedy of the commons but the tragedy of a lost commons.